As you know, this blog takes the view that in a globalised world a terrorist threat to the networks that support modern life are a threat to us all. And that international law doctrines of self-defence and ‘national sovereignty’ need to be redefined accordingly:

  • if a state wants the benefit of modern networks and the human ingenuity they support, it must take on a fair share of the responsibility for protecting them
  • that means that if a threat to these networks is identified on the territory of state X, state X has to deal with it
  • it also means that if state X is unable or unwilling to deal with that threat, other states have the right to intervene to do so, respecting principles of proportionality, due process (as far as possible), and reasonableness

How in practice is this working out? Quite well, thanks to drone warfare. US methods and the latest technologies are being used to destroy terrorists (and terrorist suspects) in remote corners of the planet where local security forces can’t (or won’t) operate.

Help! Targeted killings! Murder!

No. No.

It’s legitimate self-defence in the modern era, done with as much discipline and tight operational focus and minimal collateral damage as can be mustered. Better that we attack these people in their backyard than we wait for them to attack us in ours.

But, you ask, who decides whom to attack, and how are those fateful decisions taken?

We now have the answer, thanks to the New York Times. Here:

It is the strangest of bureaucratic rituals: Every week or so, more than 100 members of the government’s sprawling national security apparatus gather, by secure video teleconference, to pore over terrorist suspects’ biographies and recommend to the president who should be the next to die.

This secret “nominations” process is an invention of the Obama administration, a grim debating society that vets the PowerPoint slides bearing the names, aliases and life stories of suspected members of Al Qaeda’s branch in Yemen or its allies in Somalia’s Shabab militia.

The video conferences are run by the Pentagon, which oversees strikes in those countries, and participants do not hesitate to call out a challenge, pressing for the evidence behind accusations of ties to Al Qaeda.

“What’s a Qaeda facilitator?” asked one participant, illustrating the spirit of the exchanges. “If I open a gate and you drive through it, am I a facilitator?” Given the contentious discussions, it can take five or six sessions for a name to be approved, and names go off the list if a suspect no longer appears to pose an imminent threat, the official said. A parallel, more cloistered selection process at the C.I.A. focuses largely on Pakistan, where that agency conducts strikes.

The nominations go to the White House, where by his own insistence and guided by Mr. Brennan, Mr. Obama must approve any name. He signs off on every strike in Yemen and Somalia and also on the more complex and risky strikes in Pakistan — about a third of the total.

Aides say Mr. Obama has several reasons for becoming so immersed in lethal counterterrorism operations. A student of writings on war by Augustine and Thomas Aquinas, he believes that he should take moral responsibility for such actions. And he knows that bad strikes can tarnish America’s image and derail diplomacy.

“He realizes this isn’t science, this is judgments made off of, most of the time, human intelligence,” said Mr. Daley, the former chief of staff. “The president accepts as a fact that a certain amount of screw-ups are going to happen, and to him, that calls for a more judicious process.”

I have linked before to the superb work of Kenneth Anderson in this sensitive but vital area. Here he looks at the NYT piece with a keen eye:

… the administration wants to send a clear signal that the President considers and signs off on these personally, and that this is far from a perfunctory or unconsidered sign-off. I applaud the President for this level of personal review; I think it is right. 

This signal carries a certain ambiguity, however – one that I believe the administration needs to consider closely. The ambiguity lies in whether the President’s personal, considered attention to each decision is understood and conveyed to the public as a matter of the burden of the institutional presidency – something that would be no less true of a President Romney than a President Obama. 

In that case the implication is that President Obama is stepping up to the plate to establish a process not just for himself, but for his successors and for the institution of the presidency. And he does so in a way that both sets a precedent (in the sense of a certain burden) for the proper level of involvement of the president in targeted killing decisions. 

But, while setting a presidential burden, this also gives future presidents important institutional legitimacy, through the weight of precedent established by the acts of a prior president, and institutional stability – to targeted killing, specifically, but also by implication to the emerging paradigm of covert and small-scale self-defense actions against non-state terrorist actors which, in the future, may or may not have anything to do with Al Qaeda and might be addressed to wholly new threats.

The alternative is that President Obama is sending a signal that these actions are legitimate only because he is personally trusted to do the right thing on these decisions, just because he is Barack Obama. His constituencies trust him with this power in a way that they would not entrust to any other president, including those who come after. 

In other words, there is a question implicit in the New York Times description as to whether the President is conferring a purely personal legitimacy that disappears with this presidency, or whether he and his administration are creating a long term process, and conferring the weight of institutional legitimacy on it.

It is obvious from how I’ve framed the ambiguity that I believe that the administration has an obligation to create lasting institutional structures, processes, institutional settlement around these policies. It owes it to future presidencies; every current president is a fiduciary for later presidents. 

It also owes it to the ordinary officials and officers, civilian and military, who are deeply involved in carrying out killing and death under the administration’s claims of law – it needs to do everything it can to ensure that things these people do in reliance on claims of lawfulness will be treated as such into the future … there is still room for the players involved to say clearly that these processes are legitimate for the executive, this president and future presidents.

In this area President Obama has set a high and powerful standard. Just as Republicans will continue to snipe at his ‘weakness’ in foreign policy (because that’s what Republicans do), Democrats will hoot at President Romney’s out-of-control abuse of power when he does the same (because that’s what Democrats do). Meanwhile one-by-one these villains will be picked off.

All of which duly noted, let’s also agree that we are at a technological and civilisational turning-point.

For now these high-precision UAV/drones and their supporting networks are still controlled by a handful of states. Good. But the technology will leak and get cheaper and better. Not so good.

In due course the terrorists themselves will get their hands on the kit that allows them to launch remote micro-attacks against us.

These days we can just about stop the IRA lobbing a mortar bomb into the garden of No 10 Downing St. How do we plan to stop a terrorist drone the size of a small soup-plate armed with a lethal poison dart wafting quietly over St James’s Park and hovering in the trees near the Trooping of the Colour, waiting to zoom down using its face recognition technology and stab King William as he takes the Royal Salute? Or a flock of them zig-zagging over London, nipping to and fro and bumping off random civilians?

Things are going to change a bit.